3. JUDGMENTS; DECREES; DRAWN ORDERS AND SETTLEMENT ORDERS
N, B)At the end of the course students are expected to be able to;
c) Identify judgements, rulings, drawn orders, decrees and settlement orders;
a) JUDGEMENT
Meaning
S.3 Cap 33 R.E. 2002
Osborn’s Concise Law Dictionary, 8thEd, p.187
‘The decision or sentence of a court in a legal proceeding. Also the reasoning of the judge which leads him to his decision, which may be reported and cited as an authority, if the matter is of importance, or can be treated as a precedent’.
Black’s Law Dictionary, 8thEd p. 846
‘A court’s final determination of the rights and obligations of the parties in a case’. The term judgement includes a decree and any order from which an appeal lies.
Types of judgement
Consent judgement; deferred judgement; final judgement; foreign judgement; Ex-parte judgement; judgement in persona mans in rem judgement
Form and substance
r. 4 O. XX Cap. 33 R.E. 2002
A judgement shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision
Nkungu v. Mohamed [1984] T.L.R. 46
WHAT SHOULD BE REFLECTED IN THE JUDGEMENT
According to Chipeta, the following should be reflected in a valid judgement:
-reasoned account and analysis of the evidence, findings of fact thereon;
-exposition of the principles of law applicable to such facts;
-the decision as to the rights and liabilities of the parties to the suit.
r. 3 O. XX Cap 33 R.E. 2002- judgement must be signed on the date delivered.
N.B No rule of thumb as to the exact form a judgement should follow.
Rectification of errors in judgements and decrees-
r. 3 O. XX Cap. 33 R.E. 2002 and s.96 of Cap. 33 R.E. 2002
Peter Temba v. DSM City Council & Hassan Ibrahim Sobo, Civil Appeal No. 162/2002, HCT at DSM (unreported), Oriyo,J. Rectification of a decree-
How sought?
ss. 95 and 96 of the Civil Procedure Code, Cap. 33 R.E. 2002. File,
Chamber summons supported by an affidavit
Slip rule
b) DECREE
-Meaning
‘formal statement, extracted from a judgement which declares the rights of the
parties’
parties’
Osborn Law Dictionary, 8thEd, p. 109
‘ An order of a court pronounced on the hearing of a suit’
-Content
r.6(1) O. XX, Cap. XX R.E. 2002.
The decree shall agree with the judgement; it shall contain the no of the suit;
The names and descriptions of the parties;
Particulars of the claim;
Specify reliefs granted or other determination of the suit.
Date of the decree shall be the date of the judgement when it was delivered (r.7);
Legal effect of variance between judgement and decree
- Decree is rendered invalid
See
- Ibrahim Kassamali & 3 Others v. Theodica Mselle, Civil Appeal No. 101/2007, HCT at DSM Registry (unreported)- dates on judgement and decree differed.
- Pius A. Macha v. National Lotteries Board, Civil Appeal No. 169/2004, HCT at DSM (unreported), difference in dates between the date on the judgement and that of the decree
- Abdallah Rashidi Abdallah v. Sulubu Kidogo Amour & Said Issa Said, Civil Appeal No. 94/2006, CAT at Zanzibar (unreported)
- –variance between the judgement date and that of a decree
- Premier dairy Ltd v. Sagoo & another [2010] 1 EA 334 (CAK) –appeal struck out with costs. It is not enough to argue that it is a court which prepared such a record.
Remedy
- Apply for rectification under ss.95 and 96 of the CPC, Cap 33 R.E. 2002.
- Peter Temba v. DSM City Council & Hassan Ibrahim Sobo, Civil Appeal No. 162/2002, HCT at DSM (unreported), Oriyo,J. Rectification of a decree-
( c ) Drawn Order
It is drawn from a ruling. It is just like a decree. Rulings in applications for
injunctions result into drawn orders.
injunctions result into drawn orders.
(d) Settlement orders/Decrees
These result from mediation proceedings.
APPEALS
MILIMO MASILIKALE VS. LEMENGA MASSA CIVIL APPEAL NO. 38 OF 1989 – DODOMA HC RUHUMBIKA, J.
The unsuccessful party is informed of his rights of appeal to the Court of Appeal but subject to:
(1) Leave to appeal.
(2) For cases originated from PC Certification of a point of law.
(3) Limitation period.
Appeals from Decrees
Appeal from original decree S.70.-(1)
An appeal shall lie to the High Court from every decree passed by a court of a resident magistrate or a district court exercising original jurisdiction.
An appeal may lie from an original decree passed ex parte.
No appeal shall lie from a decree passed by the court with the consent of the parties.
Appeals from final decree where no appeal from the preliminary decree S.71
Where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
Decision where appeal heard by two or more judges S.72.-(1)
Where an appeal is heard by a Bench of two or more judges, the appeal shall be decided in accordance with the opinion of such judges or of the majority (if any) of such judges. Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed:
Provided that where the bench hearing the appeal is composed of two judges and the judges composing the bench differ in opinion on a point of law, they may state the point of law upon which they differ, and the appeal shall then be heard upon that point only by one or more of the other judges, and such point shall be decided according to the opinion of the majority (if any) of the judges who have heard the appeal including those who first heard it.
No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction S73.
No decree shall be reversed or substantially varied, nor shall any case be remanded, on appeal, on account of
any misjoinder of parties
or causes of action
or any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the court.
Appeal from Orders
Orders from which appeals lie S74.-(1)
Act No. 12 of 2004 Sch.
An appeal shall lie to the High court from the following orders of the District Courts, Resident Magistrate’s Courts and any other tribunal, the decisions of which are appealable to the High Court,
(a) an order superseding an arbitration where the award has not been completed within the period allowed by the court;
(b) an order on an award stated in the form of a special case;
(c) an order modifying or correcting an award;
(d) an order filing or refusing to file an agreement to refer to arbitration;
(e) an order staying or refusing to stay a suit where there is an agreement to refer to arbitration;
(f) an order filing or refusing to file an award in an arbitration without the intervention of the court;
(g) an order under section 69;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention as a civil prisoner of any person except where such arrest or detention is in execution of a decree; or
(i) any order made under rules from which an appeal is expressly allowed by rules.
Act No. 12 of 2004 Sch.
No appeal shall lie against or be made in respect of any preliminary or interlocutory decision or order of the District Court, Resident Magistrate’s Court or any other tribunal, unless such decision or order has effect of finally determining the suit.
Other orders
No appeal shall lie from any order made by a court; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal. S.75
General Provisions relating to Appeals Powers of the High Court on appeal S76.-
The High Court in the exercise of its appellate jurisdiction shall have power-
(a) to determine a case finally;
(b) to remit a case for re-trial;
(c) to frame issues and refer them for trial; or
(d) to take additional evidence or to require such evidence to be taken.
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